In an amicus curiae brief, the US Department of Justice argues for respect for comity principles and criticises anti-suit injunctions in proceedings involving investment arbitration disputes with Spain
Executive summary
On 2 February 2024, the Government of the United States of America (US) submitted a brief as amicus curiae in three actions brought by NextEra Energy Global Holdings B.V., et al. (NextEra) 9REN HOLDING S.A.R.L. (9REN) and Blasket Renewable Investments, LLC (Blasket) against the Kingdom of Spain seeking to confirm three arbitral awards in the amount of EUR 290.6 million, EUR 41 million and EUR 91.1, respectively, before the United States District Court for the District of Columbia. The resolution of these three cases has resulted in conflicting decisions issued by different judges, which were appealed to the U.S. Circuit District Court of Appeals for the District of Columbia. The brief raises a number of central issues under the Foreign Sovereign Immunities Act (FSIA), with particular emphasis on the arbitration exception and the effect of State participation in the ICSID Convention on the waiver of sovereign immunity.
In an order dated 5 January 2024, the Court of Appeal ordered that the United States Department of Justice be invited to file a brief Amicus Curiae addressing the views of the United States on the issues on appeal, in particular: “Whether the arbitration exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(6), applies to empower a United States court, in an action to recognize and enforce an arbitral award against a foreign sovereign pursuant to the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (ICSID Convention), to review the arbitration tribunal’s determination that the underlying dispute was subject to a valid arbitration agreement. Whether, by becoming a party to the ICSID Convention, a state waives sovereign immunity under the FSIA waiver exception, 28 U.S.C. § 1605(a)(1), from any action seeking the recognition and enforcement of an arbitral award governed by the Convention”.
Background
The three disputes arose from a series of laws adopted by the Spanish Government from 2010 onwards that affected the renewables sector, including a 7 per cent tax on power generators’ revenues and a reduction in subsidies for renewable energy producers.
The EU investors claimed that Spain had violated the provisions of the Energy Charter Treaty (ECT). Consequently, they initiated arbitration proceedings...
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3wVery informative